Civil liability

Contracts and leases

The general rule is that a young person under the age of 18 is not bound by a contract. It is possible, however, to be bound by a contract for things that are necessary for survival (e.g. food, housing, medical services). To find out whether a contract that has been signed by a young person is binding or not, seeYoung people”, in How contract law works.

Some traders will allow a young person to enter into a contract for goods or services if the young person has a guarantor. A guarantor is someone over 18 who can be sued if the person fails to pay. For further information about being a guarantor, seeGuarantees”, in Mortgages, credit cards and other finance products.

A person can rent a flat or house, even though under 18, and can sign a lease. More importantly, if the rent is not paid or damage is caused to the property, that person can be sued by the landlord. This is because housing is a necessary item for survival. The contract can be cancelled at any time, at the option of the young person. For further information about leases and tenancy problems, see Tenancy.

Civil wrongs

Children are generally liable for the consequences of their wrongful acts, but the degree of reasonable care required of them depends upon the standard normally expected of children of like age, intelligence and experience.

In the case of a very young child in a negligence action, or where a particular state of mind such as malice is required, the young child may be aware of what they are doing and may know that the action is wrong, but still be incapable of foreseeing its consequences. In such a case there would be no liability in negligence.

In the case of McHale v Watson [1964] HCA 64, a 12-year-old boy threw a metal dart at a post but it apparently glanced off the post and hit a 9-year-old girl in the eye. He was found to be not negligent at law as a boy of his age could not be expected to foresee that the dart would not stick into the post but would go off at a tangent and hit someone.

The capacity of a child is a question of fact to be considered and decided in each case. Obviously, the closer a child is to the age of majority, the more the standard of care resembles that required of an adult.

Parents’ liability

Normally parents are not liable for the wrongful acts committed by their children, but they may be liable if the child was acting as the parents’ agent or with their authority, or where it is found that a parent has not exercised proper control or supervision over the child which resulted in a civil wrong being committed. Naturally the circumstances will differ in each case.

In McHale v Watson (see above) the defendant’s father was not considered to be liable, even assuming that he had provided the boy with the metal dart, as the boy was old enough to handle it and could reasonably be expected to use it safely. The eventual misuse of the dart was not reasonably foreseeable as far as the father was concerned. Of course, the result may well have been different if the child had been eight or nine years old or if the father had provided him with a gun or some other dangerous object.

If a child is known to its parents to have vicious or uncontrollable tendencies, the parents have a much stricter liability for control.

Civil procedure

A person under 18 can sue another person only through a litigation guardian, i.e. an adult whose name appears on the court documents and who guarantees to pay costs if they are ordered against the infant. Usually a parent or legal guardian of the infant acts as the litigation guardian.

The fact that a plaintiff to an action is an “infant” (i.e. a person under the age of 18 years) should be mentioned in the title of the action.

If a person under 18 is sued, the appearance or defence must also name a litigation guardian. An action against a young person is instituted in the ordinary way, i.e. it is not necessary for the plaintiff to describe the defendant as an infant nor is it necessary to join, name or serve a litigation guardian. A writ may be served on a person under 18 by serving it on a parent or guardian.

If a person under 18 is named as a plaintiff (person who brings the action to court) or defendant (person against whom the action is brought) in an action which is subsequently settled out of court, the settlement must be approved by the court. The court must be satisfied that the settlement is for the benefit of the young person.

If a person under 18 recovers damages (e.g. for injuries) the money will be paid into court until that person is 18. Payments can be advanced for education or for other reasons the court finds are in the young person’s interests. The age of majority was reduced in Victoria from 21 to 18 in 1978.

Under section 100(5) of the Magistrates’ Court Act 1989 (Vic) a person under the age of 18 may proceed before a Magistrates’ Court for the recovery of any sum of money payable to the young person under a contract of service or a contract for services.